Landmark Group Australia Pty Limited v Lane Cove Council

Land and Environment Court (NSW)|2018-12-13

Nature of Proceedings and Outcome

COMMISSIONER: The Applicant seeks consent for the demolition of the existing structures and construction of a six storey residential flat building comprising 27 residential apartments at 30-32 Mindarie Street, Lane Cove North. The development application was refused by Lane Cove Council in December 2017. The Applicant appeals to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("the Act") seeking the approval of the development.
The application was amended by leave of the Court in September 2018 and again at the commencement of the hearing. The principal changes from those amendments include:

A reduction in the maximum breach of the lift overrun from 0.545m to 0.47m and the submission of a revised request to vary the height standard.
deletion of the partial sixth storey so that the development now contains five storeys.
an increase in the side setbacks of the development (east and west).
redesign of the lower ground apartments to three bed units with increased private open space.
deletion of the loading dock.
an increase in the number of north facing apartments and an overall improvement in solar access for the development.

The site and its locality

The subject site is located on the southern side of Mindarie Street, between Willandra Street and Merinda Street. The site has a frontage to Mindarie Street of 36.576m and a site area of 1,220m².
The site is currently occupied by two detached dwelling houses and a detached garage, carport and trees.
The subject site and its relationship to adjoining properties is detailed below: (https://maps.six.nsw.gov.au/)
Adjoining the site to the east and west are single detached dwellings (number 28 and number 34 Mindarie Street). These lots have the same R4: High Density Residential zoning as the subject site. It is these properties that the Council argues will be isolated by the approval of the proposed development.
Adjoining the site at the south is a group of eight properties that are the subject of a development application for redevelopment (DA/162/2018). At the time of the hearing this application was undetermined.

Expert Evidence

Expert reports for waste management and traffic engineering were filed with the Court detailing the resolution of previous contested issues. I have read these reports and accept the agreed evidence of these experts. The Respondent acknowledges these contentions are resolved.
Expert urban design and planning evidence was provided by:

Andrew Martin, town planner for the Applicant.
Glenn Apps, town planner for the Respondent.
Geoff Bonus, architect/ urban designer for the Applicant.
Peter Smith, architect/ urban designer for the Respondent.

These experts prepared a joint report that was tendered as Exhibit 4. At paragraph 2 of this report the experts broadly agree that, bar a determination on the issue of site isolation,:

the proposed development is capable of being supported on planning and urban design grounds;
is an appropriate response to the site opportunities and constraints;
contains sufficient detail to assess relevant considerations including solar access, natural ventilation, setbacks, building height, FSR, cut/fill and the level of amenity provided to the apartments and communal open space (Exhibit 4)

Planning Controls

Pursuant to Section 4.14 of the Act the application was referred to the NSW Rural Fire Service (RFS) for comment. Correspondence was received from the RFS in July 2017 which provided conditions relating to water supply and design and construction which are recommended to be placed on any consent. These conditions are incorporated in the draft conditions at condition 37, 38 and 39.
In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal (Exhibit E). The proposal is considered to satisfy the requirements of this policy.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)). A design verification statement was filed with the Court on 21 January 2019.
State Environmental Planning Policy 55 - Remediation of Land at cl. 7(1)(a) requires the consent authority to consider whether the land is contaminated prior to consenting to the carrying out of any development on the land. Council has reviewed the Applicant's Preliminary Site Investigation report, prepared by Sevica Consulting Group (September 2017) and concludes that: A land title search found that the land had been used for low density residential purposes since 1950 and there is no evidence of potentially contaminating activities ever having occurred. Aerial photographs are included from 1943-2014 and do not show any significant change in the landscape over the years. The potential concentration of heavy metals as a result of vehicle emission from adjacent roads is also considered low and potential groundwater contamination is considered negligible. (Ex 2)
On this basis I am satisfied, from the perspective of contamination, that site is suitable for the development proposed.
The site is zoned R4 High Density Development pursuant to LEP 2009. The aims of LEP 2009 that are relevant to these proceedings are: (a) to establish, as the first land use priority, Lane Cove's sustainability in environmental, social and economic terms, based on ecologically sustainable development, inter-generational equity, the application of the precautionary principle and the relationship of each property in Lane Cove with its locality, (b) to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community, (c) in relation to residential development, to provide a housing mix and density that: (i) accords with urban consolidation principles, and (ii) is compatible with the existing environmental character of the locality, and (iii) has a sympathetic and harmonious relationship with adjoining development, … (j) in relation to housing, to increase the number of affordable dwellings in Lane Cove and to promote housing choice.
The proposed use, residential flat building, is permissible with consent in the R4 High Density Development zone. The objectives of the zone are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a high concentration of housing with good access to transport, services and facilities. • To ensure that the existing amenity of residences in the neighbourhood is respected. • To avoid the isolation of sites resulting from site amalgamation. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
The height of buildings development standard applicable for the site is 17.5m (cl 4.3 LEP 2009) and the parties agree that the development breaches the height development standard by 0.476m at the lift shaft. A request to vary the height standard pursuant to cl. 4.6 of LEP 2009 has been prepared by Andrew Martin Planning Pty Ltd on behalf of the Applicant (Exhibit D).
Clause 4.6 provides the opportunity to provide exemptions to development standards by way of a written request. Clause 4.6 relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. …
The floor space ratio development standard applicable for the site is 1.8:1 (cl 4.4 LEP 2009) and the parties agree that the development complies with the development standard and has a total FSR of 1.172:1.
The Lane Cove Development Control Plan Amendment 2 (DCP 2010) applies to the site. The most relevant provisions of DCP 2010 to the issues that remain between the parties are located in Part B: General Controls: B3 Site Amalgamation and Development on Isolated Sites:
The objectives for Site Amalgamation and Development on Isolated Sites at Part B3 are: a) To provide for a development that achieves the required employment and dwelling yields. b) To encourage the promotion and co -ordination of the orderly and economic use and development of land. c) To encourage site consolidation of allotments for development in order to promote the desired urban design outcomes and the efficient use of land and to avoid the creation of isolated sites. d) To encourage the development of existing isolated sites in a manner that responds to the desired built form pattern, site context and maintains a satisfactory level of amenity.
At clause 3.1 of Part 3 the following controls apply: a) Development for the purpose of residential flat buildings and high density housing should not result in the isolation of sites such that they cannot be developed in compliance with the relevant planning controls, including Lane Cove LEP 2009 and this DCP. b) Where a property is likely to be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application c) Where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. Council will require appropriate documentary evidence to demonstrate that a genuine and reasonable attempt has been made to purchase an isolated site based on a fair market value. At least one recent independent valuation is to be submitted as part of that evidence and is to account for reasonable expenses likely to be incurred by the owner of the isolated site in the sale of the property. d) The level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. e) Where amalgamation of the isolated site is not feasible, the applicant will be required to demonstrate that an orderly and economic use and development of the separate site can be achieved as part of their Development Application. f) If variations to the planning controls would be required, such as non compliance with a minimum allotment size, any assessment of the proposal would include whether both sites would be able to achieve a development of appropriate urban form with an acceptable level of amenity. g) To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. h) The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments. i) The development of existing isolated sites is not to detract from the character of the streetscape and is to achieve a satisfactory level of amenity including solar access, visual and acoustic privacy. j) Development of existing isolated sites may not achieve the maximum potential density, particularly height and floor space ratio, and will be assessed on merit. k) Where adjacent sites are developing concurrently, site planning options for development as an amalgamated site are to be explored. l) Development proposals should be accompanied by a subdivision plan which achieves a consolidation of allotments.
The Dictionary to DCP 2010 defines an Isolated site as 'a property that cannot satisfy minimum lot requirements'.
The minimum lot size requirements are contained in Part C: Residential Development of DCP 2010 as follows: a) The minimum site area for residential flat developments is 1,500m². There are no specific objectives to this control. The Applicant seeks a variation to the site area control as the subject site has an area of 1220m².

Public Submissions

The application was publically notified in accordance with the requirements of DCP 2010. The Council received one submission, which raised objection to the development. Their objection raised the following concerns in relation to the development as it was at that time:

The proposed development is too large for the subject site
The area for landscaping is inadequate and the deep soil areas are not compliant with Council's controls.
the development exceeds the height limit and the exceedence in not adequately justified.

A representative of the Aboriginal Housing Office (AHO) addressed the Court during the onsite hearing. They made the following representations:

the AHO has a duty of care to its clients and when managing any asset is required to take into consideration both financial and social considerations.
the AHO noted that they have limited housing stock in the Lane Cove area and the specific tenant that would be affected by any dislocation is vulnerable and has health concerns.
in early 2017 the AHO received an unsolicited proposal from the Applicant to purchase 34 Mindarie Street. This offer was not accepted as it was not considered to be fair value.
An independent valuation was prepared by the AHO and provided to the Applicant.
Despite correspondence and a further offer in May 2018 the parties have not been able to reach an agreement for the sale of the property.
the AHO remains concerned that the proposed development has a limited setback from the common boundary (the eastern boundary) and proposes a long dark wall that will reduce the amenity of their property.

Assessment of the requested variation to height

The Applicant seeks to vary the maximum building height development standard to accommodate a lift overrun. The extent of the variation sought is clearly delineated in the architectural plans at drawing SK202 (Exhibit A).
The submitted variation request details the extent of variation as follows Lift shaft maximum exceedence is 0.476m Roof south western corner maximum exceedence 0.099m. (Ex D)
The onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the Building Separation standard at cl 8.6 of LEP 2009: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (Initial Action). The Applicant's written request seeking to justify the contravention of the development standard must adequately address both:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

The Court, on appeal, must form a positive opinion of satisfaction that the Applicant's written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] ('Wehbe").
Namely, that: 1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); 2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2); 3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3); 4. that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or 5. that the zoning of the land is unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (Wehbe test 4).
In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).
In this appeal, the Applicant has utilised the Wehbe test 1; namely that the compliance is unreasonable and unnecessary because the objectives of the control are achieved notwithstanding the variation.
The applicant argues that the objectives of the height control are achieved notwithstanding the variation on the following grounds: … The visual fit of the building in this particular instance having regard to the variations sought is acceptable and appropriate for this site. The additional roof volume of built form arising from the variations, whether it be the roof element or the lift shaft, will not be visible from most positions in the public domain or private lands. The built form responds to its context having regard to it site features which includes, on this side, a slope to the read and from east to west. The streetscape presentation of the building is acceptable in this instance having regard to the existing adjoining dwellings/surrounding residential flat buildings and the potential for future infill development. The site slope contributes the height variation. … When considered within the framework of the objectives the purpose of the height control requires the development to provide reasonable amenity impacts as a result of the building height and specifically the variation. The following justification relates to both the lift shaft and the very minor roof projection to Unit 401 on the upper level (level 4). (a) to ensure development allows for reasonable solar access to existing buildings and public areas, - The shadow diagram plan provided by DKO Architecture demonstrates that reasonable solar access is provided to existing buildings when considering the shadow of the 0.476m lift and 0.099m roof variation. The objective does not specify what existing building is to be considered. Adequate access to sunlight can be achieved to adjoining sites to the east, west and south. Solar access is considered reasonable having considered the extent of the variation. Solar modelling demonstrates that the additional shadow cast by the additional height maintains reasonable solar access opportunities to all adjoining properties and within the site. Public areas have access to reasonable levels of sunlight. SK851 SKA (see Annexure B) demonstrates the solar access and the extent of overshadowing. The areas of non- compliance do not impact the provision of reasonable solar access to existing buildings and public areas and accordingly is consistent with the objective of the standard. (b) to ensure that privacy and visual impacts of development on neighbouring properties, particularly where zones meet, are reasonable, - The additional height facilitates part of the additional roof element to Unit 401. Regardless of the variation privacy loss on neighbouring properties is reasonable given that there are no windows facing west. South facing window to the bedroom of Unit 4 is setback more than 12m from the southern boundary. - Visual impacts on neighbouring properties are reasonable given that the window facing south at that top most level is setback considerably from the rear boundary and setbacks are ADG compliant at that level. The compliance with the ADG separation requirements ensures that the privacy and visual impacts of the subject development are acceptable with respect to the neighboring properties. (c) to seek alternative design solutions in order to maximise the potential sunlight for the public domain, - The variation does not affect the potential sunlight to the public domain given the orientation of the site and its centralised position being bounded by properties either side of Mindarie Street. Solar studies prepared by DKO Architecture (see Annexure B) confirm that the area in excess of the height control does not affect the public domain's solar access. (d) to relate development to topography - To the extent necessary the proposal and specifically the lift and roof responds to the sites topography. The roof area is not excessive and supports what is compliant gross floor area. The clause does not prevent excavation and some excavation is required to locate the basement and lower ground level. The plans prepared for the lift and the roof element satisfy the objective.
The Respondent in their submissions notes that they are satisfied that the Applicant's variation request establishes that the objectives of the control are satisfied notwithstanding the variation to the height standard. The Respondent accepts that on this basis mandating compliance with the height control is unreasonable and unnecessary.
In their joint report the planning and urban design experts agree that the development as amended satisfies the objectives of the height control. I have read and considered their assessment.
With the benefit of a site inspection, I accept the Applicant's reasoning at par [42] that compliance with the development standard is unreasonable and unnecessary in the circumstances of the subject site and the design proposed. I am satisfied that it is appropriate to apply the building height standard flexibly for this particular development for the reasoning submitted by the applicant.
I find that I can be satisfied that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2009.

Are there sufficient environmental planning grounds?

The Applicant's written request must adequately demonstrate that there are sufficient "environmental planning grounds" that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, "the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard", and secondly: "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter (citations omitted)."
In considering the Applicant's case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds: … the lift overrun variation at a maximum 0.476m is considered acceptable due to the fact that this variation occurs centrally within the building footprint on what is a sloping site. The central location of the lift offers a number of advantages and these advantages provide the relevant planning grounds to justify contravening the development standard on this particular site. The environmental planning grounds justification for the lift variation is provided as follows: - Repositioning the lift to a location capable of achieving height compliance would require the lift to be located in the north east corner of the building footprint. The lift shaft and overrun would be more visible from the public domain due to greater exposure to the street and has potential to add greater bulk and scale. This would adversely impact the streetscape, emphasise the rise in storeys fronting Mindarie Street and reduce the number of windows and balconies activating the street edge of the proposed building, which is not desirable as a planning outcome. - The location of the lift centrally within the building footprint results in a height variation. This is due to the site topography, and results from the need to provide level access from the street to the building entry, thereby establishing the entry level of the lift. The site falls from the Mindarie Street boundary to the rear and the height limit follows this topography such that the lift shaft exceeds the height limit. This location has negligible bulk and scale impacts due to the lift being contained well behind the main roof element of the building. When viewed form Mindarie Street and adjoining properties the lift shaft is essentially obscured from view offering an improved streetscape. Alternate height compliant locations would see the lift overrun being visible from the street from certain angles which is less desirable than the proposal. - Following on from the above the lift is located in the central position so that it is least visible from the street and its neighbours. On other R4 High Density Residential zoned sites it may be more appropriate to locate the lifts in alternate positions. On this particular site the site dimensions, orientation and configuration are such that a central lift is required to promote the orderly and economic use of the land and minimise any adverse impacts associated with its presentation including streetscape, bulk and scale and shadow impacts. - On an urban form perspective the lift is located in the most desirable position. The central lift position has many practical advantages and enables the basement to be designed with compliant and efficient ramps and isles that would not be achievable with a lift core in the north eastern corner of the site. Inefficiencies in the use of the available floor area results from a lift located within the north eastern corner of the site and does not allow or facilitate the orderly and economic use of the land. - The central position results in shadows that are consumed within the shaded area of the main building therefore no additional shadowing impact results from the lift position. - In relation to the roof element as shown coloured on plan SK505 SKA (shown in Figure A of this report) there are sufficient environmental planning grounds to warrant the requested 0.099m variation. Whilst the variation is very minor it nevertheless departs from the standard. The proposal could be made to comply by deleting part of the roof over the bedroom to Unit 401 however this would serve no planning purpose except to achieve compliance with a numerical provision. Because of the minor nature of the variation the additional shadow would at worst appear as a red line and is so minor it is insignificant. The shadow diagrams establish that the extent of solar access available to private and the public domain is acceptable and within the limits expected for infill residential development in an area undergoing transition. - The lift in the north east corner would interfere with a north facing corner apartment at each level which is not desirable. - A lift in the north east corner would result in the reduction of dual aspect apartments and would require more extensive use of corridors. - A lift in the north east corner would increase the path of travel to access the communal roof space which offers extensive amenity and views to the surrounding E2 and E4 lands plus interrupt the corner apartment east facing bedrooms. Loss of a corner apartment facing the street is not desirable. - The height variations occur as a result of the slope of the land and it is noted that certain area remains under the height control over the building footprint. - The lift location and associated non-compliance with the height control facilitates equitable access to a high quality communal open space area on the rooftop without any detrimental or adverse impacts associated with its presence. - The location of the lift and associated non-compliance facilitates the efficient layout and planning of the basement car park and units on each floor while negating any potential adverse impacts from its presentation or additional height. (Ex D)
I'm satisfied that the request establishes sufficient environmental planning grounds to justify the departure from the standard. The request clearly sets out how the height variation arises from a design that has considered the optimum location of the lift core. I am satisfied a central lift location promotes the orderly and economic use of the land and the height variation at this point arises from the fall of the site. I am satisfied that the design minimises any adverse impacts associated with the variation including streetscape, bulk and scale and shadow impacts.
Collectively, I accept these grounds sufficiently justify the contravention of the development standard.
I find that I can be satisfied that the Applicant's written request adequately demonstrates the matters in cl 4.6(3)(b) of LEP 2009.

Are the matters in Clause 4.6(4) satisfied?

As stated in Initial Action at [14], cl 4.6(4) "establishes preconditions that must be satisfied before a consent authority [or the court exercising the functions of a consent authority] can exercise the power to grant development consent" (at [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent.
Given the findings in the preceding the test at cl. 4.6(4)(a)(i) is satisfied.
At cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the height standard and the objectives of the R4 High Density Residential zone: Initial Action at [26].
The satisfaction of the objectives of the height standard is addressed in the preceding.
The objectives of the zone are provided at par [22].
The Applicant argues that the objectives of the zone are met on the following grounds: - to provide for the housing needs of the community within a high density residential environment The proposal achieves the stated objectives by continuing the redevelopment and transition of this traditionally low density residential area to the high density residential use reflected in the R4 zoning of the land. The area is experiencing considerable ongoing redevelopment with a number of recent approvals and/or construction over the last five years. This objective is achieved - to provide a variety of housing types within a high density residential environment. The proposal contains a mix of dwelling sizes and types. This objective is achieved. - to enable other land uses that provide a facilities or services to meet the day to day needs of residents The proposal is residential in nature given that the site is located within a defined residential zone. The proposal does not offend the stated objective. - to provide for a high concentration of housing with good access to transport, services and facilities. The subject site is located within a highly accessible location being within walking distance of a number of bus stops, being within 400-500, of the Mowbray Road bus stops and major motorways in all directions. Each of these provide good levels of access to services and facilities. - to ensure that the existing amenity of residences in the neighbourhood is respected. The design, layout and siting of the new development, inclusive of the components outside the height control, has taken into account the existing and likely future amenity of residences in the neighbourhood and ensured that each is respected. The proposal has been designed to minimise potential impacts to an acceptable level. Therefore the development achieves the objective. - to avoid the isolation of sites resulting from site amalgamation. The proponent has attempted to purchase adjoining land but to date has not been able to negotiate terms with neighbours to amalgamate sites to achieve the 1500sqm minimum. Notwithstanding plans submitted with the architectural plan set demonstrate that each adjoining site remains capable of redevelopment in the future. The height variation has no bearing on the ability to achieve this particular objective. - to ensure that landscaping is maintained and enhanced as a major element in the residential environment. The proposal includes landscaping and deep soil planting where possible, particularly in the front and rear setback areas to soften the view of the development from the street and south side. The height variation has no bearing on the ability to achieve this particular objective.
The Respondent contends that the development is inconsistent with the sixth objective of the R4 High Density residential zone, namely 'to avoid the isolation of sites resulting from site amalgamation'.
The primary issue pressed by the Respondent is that the location of the proposed development will create an unacceptable planning outcome arising from the isolation of the adjoining sites (Respondent's Outline of Closing Submissions).
It is appropriate to outline the arguments and evidence in relation to the potential for site isolation to result from the development. prior to making findings in relation to the consistency of the development with the objectives of the R4 High Density residential zone.

Will approval of the subject development create isolated sites?

Council argues that the two residential lots to the immediate east and west of the subject site will be isolated by the development. These properties are: 1. No. 28 Mindarie Street: owned by Department of Family and Community Services; and 2. No. 34 Mindarie Street: owned by the AHO.
The parties agree that the relevant planning control to this issue is in Part B3 of DCP 2010 at paragraph (a): development for the purpose of residential flat buildings … should not result in the isolation of sites such that they cannot be developed in compliance with the relevant planning controls, including Lane Cove LEP 2009 and this DCP.
The Applicant argues that 38 and 34 Mindarie Street are not isolated in accordance with the definition in DCP 2010 (refer paragraph [30]) for the following reasons: 1. the planning control at Part B3(a) of DCP 2010 should be read in the context of the definition of 'isolated sites' within the plan; 2. Both of the corner sites can individually be redeveloped for a wide range of permissible uses under LEP 2009, or under the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009, that are not subject to the minimum lot size requirement in DCP 2010. 3. The fact that a residential flat building for affordable housing is able to be developed on Nos. 28 and 34 mean that the sites are not isolated. 4. The range of other permissible uses in the R4 High Density Residential zone, which are also not subject to a minimum lot size requirement, mean that the sites are not isolated. (Applicant's outline of closing submissions).
The experts agree that, at the time of the lodgement of the development application, the corner sites at 38 and 34 Mindarie Street were not isolated. They state: This is because other lots to the south are available for consolidation with 28 and 34 Mindarie Street to achieve the minimum 1,500m² site area required by LCDCP 2010 Part C 3.2 Density independent of 30-32 Mindarie Street (Ex 4).
The experts also agree that if Council approves DA162/2018 over the lots to the south of the subject site (refer paragraph [11] ) then the corner sites at 28 and 34 Mindarie Street will be isolated in a LCDCP sense so as not to have any opportunity to achieve the minimum 1500sqm (Ex 4).
The experts also note that there is a distinction between this circumstance and the facts in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 ('Karavellas') on which the Court has established planning principles in relation to site isolation.
The applicant has prepared, as part of their development application, a number of redevelopment options for the adjoining lots (28 and 34 Mindarie Street). The initial development application detailed potential development of these sites with the lots to the South (DA801 through DA807 in Annexure Ex 4). This scheme (depicted below) would result in three potential development sites that achieve the minimum lot area for residential flat development in DCP 2010.
The experts agree that: 'if consolidate as proposed by DKO drawing 801 Issue A, the likely future development of corner sites at 28 and 34 Mindarie Street is reasonable, provides an urban design outcome compatible with the proposed development, and appears to comply with the requirements of SEPP 65, LDCP 2010 and the amenity requirements of the ADG. (Exhibit 4)
Also included in the architectural plans are a series of plans detailing the potential redevelopment of 38 and 34 Mindarie Street as single allotments for the purposes of a boarding house. This additional information was prepared by the Applicant after the development application covering the lots to the south of the subject site was lodged with Lane Cove Council (DA/162/2018).
On behalf of the Applicant Mr To submits that 38 and 34 Mindarie Street remain not isolated as: DA/162/2018 is not approved; there is no certainty that the development will proceed given the parcel that forms DA/162/2018 has been 'consolidated' on the basis of a number of purchase option arrangements; and finally the development if approved may not be constructed.
Further Mr To notes in that 'Affordable housing in the form of a residential flat building form, as well as a boarding house, are both permissible forms of development in the R4 zone, despite the DCP minimum lot size' (Applicant's outline of closing submissions).
Mr To concludes that for these reasons, the Court should find that 38 and 34 Mindarie Street are not isolated by reason of the proposed development. Further that given this finding he argues that cl. 3.1(a) in Part 3 of DCP 2010 (refer paragraph [29]) is satisfied and the remaining paragraphs of the provision do not arise.
In the alternative Dr Smith for the Respondent argues that 'there is an economic reality that the corner sites, if isolated by development between them and behind them: would not be feasible for residential flat buildings (RFBs); and could not be developed for higher and better uses such as RFBs.' In support of his submission Dr Smith relies on the aim (a) of LEP 2009 which states (his emphasis): (a) to establish, as the first land use priority, Lane Cove's sustainability in environmental, social and economic terms, based on ecologically sustainable development, inter-generational equity, the application of the precautionary principle and the relationship of each property in Lane Cove with its locality.
Further, relying on the evidence of Mr Apps, Dr Smith argues that the proposed development is inconsistent with this aim of LEP 2009. Dr Smith notes that in the joint report Mr Apps disagrees that the architectural plans filed by the applicant 'demonstrate that the site and the adjoining sites have a reasonable opportunity to redevelop'. His reasoning is detailed in the joint report as follows (emphasis added): ... GA is of the view that development of the 2 corner sites in isolation of the subject sites will result in development that is out of keeping with the character and built form expectations for land in the R4 zone. GA considers that the most logical consolidation of the 2 corner sites is with the subject land, as opposed to consolidation with land to the south. If the two middle lots were to be developed then each corner site would be provided with a development that presents a narrow form to Mindarie Street. This would likely be the case even if those lots were to be amalgamated for development with the land to the south. GA would prefer to see a development scenario where an RFB was provided on 28-30 Mindarie Street and similar on 32-34 Mindarie Street. … GA accepts that a boarding house is a permissible use on the land but does not consider the outcome to be satisfactory in meeting the character test under the ARH SEPP. The suggested boarding houses (while indicative options) would be out of scale and character in the area. While boarding houses are simply one permissible option, GA considers the boarding house options demonstrate that the result of site isolation is development that does not sit comfortably with the scale of development in the surrounding area and will not have the opportunities to reflect the modulation of built form that can be achieved from a larger site. … (Exhibit 4)
Relying on the evidence of Mr Apps, Dr Smith submits Council's objection to the development is twofold: firstly it will result in the isolation of 38 and 34 Mindarie Street (within the meaning of DCP 2010); and secondly that it approved the subject development will by default result in a built form on the remaining corner allotments that presents a narrow frontage to Mindarie Street, and that this would be uncharacteristic development in the locality.
Dr Smith submits that the development is also inconsistent with the objectives of clause B3: Site Amalgamation and Development of Isolated Sites. He argues that the corner sites, on their own, are not capable of being developed in an orderly and economic way. He submits that 'the isolation of lots in the order of 565m² does not allow for good urban design outcomes in the context of a R4 zone with a 17.5m height limit and an FSR of 1.8:1. Diagram 1 from the DCP (reproduced at paragraph [29]) explicitly demonstrates that isolated corner sites are undesirable outcome' (Respondent's Outline of Closing Submissions).

Findings

I accept the evidence of the experts that the current proceedings are distinguished from Karavellas on the following grounds: firstly the specific amalgamation or minimum allotment size control is not contained in the relevant LEP, and secondly the applicable DCP control does not define a consolidation pattern preferred by the Council for the subject site.
I am satisfied that this distinction is important as: firstly it delineates the weight to be given to the DCP control in undertaking an assessment of the application under s4.15 of the Act; and secondly it clarifies that there are no specific controls that detail the Council's preference in the achievement of a minimum allotment size if the property owner wishes to pursue the development of the site for the purposes of a residential flat building.
I accept the submission of Mr To that under the R4: High Density Residential zoning there are other permissible forms of development that do not have a minimum lot size control.
In assessing the application I have reviewed the various redevelopment options prepared by the applicant for the singular redevelopment of 38 and 34 Mindarie Street and the potential options for these allotments to be redeveloped in conjunction with the R4 zoned land to the south (refer paragraph [11]. I am satisfied that these schematics demonstrate to sufficient detail that redevelopment of these sites remains viable.
I accept the submission of Mr To that 38 and 34 Mindarie Street are not isolated in the terms of DCP 2010. In accepting this submission I have given weight to the Court's planning principles on the isolation of site by redevelopment of adjacent site(s). The decision of the Court in Melissa Grech v Auburn Council [2004] NSWLEC 40 at [51] states (emphasis added): Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application. Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979.
These principles were further developed by the decision of Tuor, C in Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189, which stated that: The key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments.
On the basis of the evidence I am satisfied that development of the single allotments at 38 and 34 Mindarie Street for residential purposes, and other permissible land uses, remains practical and feasible.
Equally I am satisfied that amalgamation options for redevelopment of 38 and 34 Mindarie Street with the properties to the south are not precluded by the issue of a consent over the subject site.
On the evidence in Exhibit F and the oral evidence of the objectors I am satisfied that:

the landowners of 38 and 34 Mindarie Street were made aware of the potential development application,
were given a reasonable opportunity to negotiate, were provided with offers informed by independent valuations and
the amendments made to the development application have been responsive to their concerns.

Accordingly I am satisfied that, to the extent they are applicable, the Court's planning principles are addressed.
On the preceding basis I do not concur with the submission of Dr Smith that the application is inconsistent with (or antipathetic to) the sixth objective of the R4 High Density residential zone, namely 'to avoid the isolation of sites resulting from site amalgamation'.
I am satisfied on the basis of the arguments submitted by the Applicant that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Accordingly, I find that matters in cl 4.6(4)(a)(ii) are satisfied.
Finally, Initial Action notes at [29] that despite the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Court Act, the Court should consider the matters in cl 4.6(5).
I find that I can be satisfied that the variation sought to the development standard does not raise any matter of significance for State or regional environmental planning, and that there are no specific circumstances that establish an overriding public benefit of maintaining the development standard in this case.
I find that the requirements of cl 4.6 of LEP 2009 are satisfied and the requested variation should be upheld.
The Court orders that: 1. The applicant is granted leave to rely on the plans contained in Exhibit A in the proceedings; 2. The applicant is to pay the Respondents costs thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed some of $1,000, payable within 28 days of the making of these orders; 3. The request to vary the development standard in clause 4.3 of the Lane Cove Local Environmental Plan 2009 is upheld; 4. The appeal is upheld; 5. Development Application DA/86/2017 for demolition of two dwelling houses and associated structures and construction of a five storey residential flat building comprising 28 units over basement parking at 30-32 Mindarie Street, Lane Cove North is approved subject to the conditions in Annexure A; 6. The exhibits are returned with the exception of Exhibits A, B, C, D, E and 1. ……………...................... D M Dickson Commissioner of the Court Annexure A

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2019

(2009) 169 LGERA 153

(2007) 156 LGERA 446

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